1. Judicial Review and the Impact of Europe Lower 6 Politics

2. Judicial Review

3. How does the process of judicial review operate in UK courts ?  UK courts interpret the precise meaning of Acts of Parliament.  They also can carry out a ‘judicial review’ of government actions if:  The government has acted beyond its legal powers (ultra vires).  If the government has acted in a way that can be shown to be improper, unfair or irrational.

4. What action can a judicial review take ?  If it can be proved that the government has acted outside of their powers then their actions or decisions can be over-turned (quashed) by the courts.  A public body (eg a local education authority) can be forced to carry out an action (eg provide a place at a special school for a disabled child)  An injunction can be issued to stop an action taking place (eg a newspaper running a story or a strike from occurring if a trade union has broken the law).

5. Case Studies 1987 – ‘Judge over your shoulder’ (Increased number of reviews, note stats on immigration) 1987 – ‘Judge over your shoulder’ (Increased number of reviews, note stats on immigration) Resentment on part of government, notably Michael Howard and David Blunkett Resentment on part of government, notably Michael Howard and David Blunkett http://news.bbc.co.uk/1 /hi/uk_politics/4754641.stm http://news.bbc.co.uk/1 /hi/uk_politics/4754641.stm http://www.telegraph.co.uk/news/uknews/1362 242/Is-David-Blunkett- the-biggest-threat-to-our- legal-system.html

6. Have Judges become too powerful? Many Politicians and academics uneasy about the judiciary stepping onto political territory Many Politicians and academics uneasy about the judiciary stepping onto political territory Parliament is and always has been protector of British liberties Parliament is and always has been protector of British liberties Politicians are accountable for their decisions where judges are not, therefore punishments for inappropriate behaviour should be the poll booth and not the courtroom Politicians are accountable for their decisions where judges are not, therefore punishments for inappropriate behaviour should be the poll booth and not the courtroom Social elitism dilemma Social elitism dilemma Division of governments is a means of protecting people from arbitrary governments An independent jury is well suited to deciding difficult decisions of the day Currently, it can be argued that judges hold greater respect within society due to parliaments recent misdemeanours If laws are passed correctly then politicians have nothing to fear

7. Problems with judicial review Should judges from an elite social class background be responsible for ruling on laws passed by elected politicians in the House of Commons ?

8. The Impact of the European Convention and the Human Rights Act 1998

9. The European Convention on Human Rights (ECHR) 1948 – UN Universal Declaration of Human Rights 1948 – UN Universal Declaration of Human Rights 1949 – Council of Europe drafted ECHR 1949 – Council of Europe drafted ECHR IMPORTANT: Council of Europe NOT part of EU IMPORTANT: Council of Europe NOT part of EU Cases to be brought before European Court of Human Rights (ECtHR) in Strasbourg Cases to be brought before European Court of Human Rights (ECtHR) in Strasbourg UK ratified in 1950 UK ratified in 1950 Not incorporated into UK law (unlike elsewhere) Not incorporated into UK law (unlike elsewhere) Individual UK citizens could petition court only from 1966 Individual UK citizens could petition court only from 1966

10. Convention Rights Right to life Right to life Prohibition of torture Prohibition of torture Prohibition of slavery & forced labour Prohibition of slavery & forced labour Right to liberty & security Right to liberty & security Right to a fair trial Right to a fair trial No punishment without law No punishment without law Right to respect for private & family life Freedom of thought, conscience & religion Freedom of assembly & association Right to marry Prohibition of discrimination

11. UK and the ECHR UK – poor record – 50 defeats to 1997... UK – poor record – 50 defeats to 1997... … but good record of changing legislation after Court defeats … but good record of changing legislation after Court defeats Road to Strasbourg – expensive, time-consuming Road to Strasbourg – expensive, time-consuming UK – negative liberty UK – negative liberty But new executive dominance But new executive dominance Left – traditionally opposed to judiciary but changed in 1990s Left – traditionally opposed to judiciary but changed in 1990s Some UK Defeats Illegal phone taps Immigration rules Rights of prisoners Homosexuals in armed forces Union closed shop Corporal punishment Anti-terrorism

12. Human Rights Act 1998 (1) HRA incorporates ECHR into UK law HRA incorporates ECHR into UK law ‘Bringing rights home’ ‘Bringing rights home’ Gives individuals rights enforceable in UK courts Gives individuals rights enforceable in UK courts ‘Constitutional’ legislation ‘Constitutional’ legislation But no special provisions for change But no special provisions for change All legislation requires minister to confirm compatibility with ECHR rights All legislation requires minister to confirm compatibility with ECHR rights Public bodies – actions and regulations must comply with ECHR Public bodies – actions and regulations must comply with ECHR

13. Human Rights Act 1998 (2) Courts must interpret laws in line with ECHR Courts must interpret laws in line with ECHR If not possible, higher courts can issue ‘declaration of incompatibility’ If not possible, higher courts can issue ‘declaration of incompatibility’ Up to parliament to change law – possibility of fast-track changes Up to parliament to change law – possibility of fast-track changes Courts cannot strike down primary legislation Courts cannot strike down primary legislation Thus, parliamentary sovereignty retained... Thus, parliamentary sovereignty retained...

14. Criticisms & Observations Unnecessary & divisive – discredits human rights Unnecessary & divisive – discredits human rights HRA will produce ‘a field day for crackpots, a pain in the neck for judges and legislators, and a goldmine for lawyers’ (Lord McCluskey) HRA will produce ‘a field day for crackpots, a pain in the neck for judges and legislators, and a goldmine for lawyers’ (Lord McCluskey) ‘Positive’ liberty incompatible with parliamentary sovereignty? ‘Positive’ liberty incompatible with parliamentary sovereignty? Rights already existed – but people had to go to Strasbourg Rights already existed – but people had to go to Strasbourg Unelected judges – bigger role in policy-making Unelected judges – bigger role in policy-making British constitution was flexible but HRA involves constitutional entrenchment British constitution was flexible but HRA involves constitutional entrenchment